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Law Professors Developing Patent License For FOSS

Soulskill posted more than 4 years ago | from the necessary-evil dept.

Open Source 41

Julie188 writes with this quote from a Networkworld article: "Two law professors from UC Berkeley have come up with a novel idea to protect open source developers from patent bullies. They call it the Defensive Patent License. They hope the DPL can address the objections FOSS developers have with patents the way the GPL addressed them for copyright. The DPL is similar to the concept of a defensive patent pool, but is not the same. The DPL is a bit more radical. It requires a bigger commitment from its members than the typical toe-in-the-water kind of pool, says Jason Schultz, former staff attorney at the Electronic Frontier Foundation. 'The perception is that bigger companies only commit their least-effective, least-important patents to a patent pool,' he says. Schultz isn't pointing fingers at any particular pool. However critics of IBM's open source patent pledge often said it didn't cover the patents most relevant to the FOSS community."

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Last Pist !! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#32133118)

First and last!

Mutual Defense Against Software Patents (4, Informative)

_|()|\| (159991) | more than 4 years ago | (#32133170)

The League for Programming Freedom advocated something like this in 1994: "Mutual Defense Against Software Patents [mit.edu] ."

Re:Mutual Defense Against Software Patents (2, Interesting)

Jurily (900488) | more than 4 years ago | (#32133334)

Microsoft [opensource.org] , of all places may have stumbled upon magic open source patent protection:

(B) If you bring a patent claim against any contributor over patents that you claim are infringed by the software, your patent license from such contributor to the software ends automatically.

Any comments on what might happen if we change the wording from patents and claims affecting said software to all software patents held by the contributor? Get IBM to contribute one line of code in your project, and happily ever after, or would it lead to Global Thermopatent War?

Re:Mutual Defense Against Software Patents (1)

Jurily (900488) | more than 4 years ago | (#32133366)

On second thought, just imagine Ballmers face when he finds out it was their FUD-spreading, SCO-funding, competitor-buying ideas that brought True Freedom to software.

I think it's worth any fallout.

Re:Mutual Defense Against Software Patents (0)

Anonymous Coward | more than 4 years ago | (#32136732)

I have a new idea. Someone tell me if it's any good.

Forget about "defensive" patents. How about aggressively offensive patents? You create a patent pool that anyone can use against anyone. Arbitrary patent trolls can use it against Microsoft and IBM if they like. Anyone can use it against Anyone, just find a violator and file suit. Except that no one can use any against anyone who has agreed to contribute all of their present and future patents to the pool. Problem solved?

Re:Mutual Defense Against Software Patents (0)

Anonymous Coward | more than 4 years ago | (#32137248)

It's a clever idea. The problem is that anyone could join to prevent themselves being victimized by the offensive patent pool. Thus you need strict requirements for the companies that want to join: maybe they should give 10 % of their patents to the pool, or maybe even 100 % of their patents. If you require 100 %, then no company is willing to join, simply to avoid losing control of their most valuable patents. If you require 10 %, then the companies are going to give 10 % of their dodgy, least worthy patents, and again you run the risk of companies joining without really giving the pool anything of worth. I'm not convinced that it is even possible to get the terms just right to make the offensive patent pool 1) work and 2) worthwhile for companies to join, at the same time.

Re:Mutual Defense Against Software Patents (0)

Anonymous Coward | more than 4 years ago | (#32138218)

If you require 100 %, then no company is willing to join, simply to avoid losing control of their most valuable patents.

That depends on how much they need to join, doesn't it? I've been thinking about this some more: Suppose you make a sort of commission system. If you contribute all of your patents to the pool, anyone can sue using them and if they succeed in court then the company contributing the patent gets 20% of the damages, the lawyer or company who did the work to sue someone gets 50% (we want to encourage people to do this so it becomes worthwhile for everyone to join the pool), the pool company keeps 10% to cover its expenses or to buy more patents, and then do something special with the last 20%: If the lawyer who sues a company can convince them to join the pool instead of paying damages, they get 20% of any damages collected using any of the patents of the company they got to join, to give "patent trolls" an incentive to get people to settle by joining the pool.

The best thing is that if a company contributes their own patents willingly, they can still use them to sue/counter sue anyone and end up keeping 90% of the damages, because they get the 50% for prosecuting the suit, the 20% patent contributor's cut and the 20% "finder's fee" since they joined without being sued first. So the main thing they "lose" is the ability to assert their patents against any companies who can't assert patents against them, and preventing that is the whole point. As for whether you can ever get e.g. Microsoft to join, think about what happens once you get a couple of medium sized companies to join: A thousand patent trolls descend on anyone who hasn't yet joined in an attempt to get a payday using the patents that are already in the pool, which will cause at least some medium and large companies to join to avoid damages and injunctions stopping them from selling their products. Then the pool gets bigger and even more companies have to join. At some point Microsoft and IBM would be in the position of having to decide whether they want to join or to pay billions of dollars in damages and be enjoined by a court from selling their products.

Oblig. (1)

History's Coming To (1059484) | more than 4 years ago | (#32133188)

I for one welcome our lawyer overlor......no....hang on, that's not right. Ethical lawyers? Wow....good for them. I feel like my universe has shifted ever so slightly for the better...?

Sounds familiar (2, Interesting)

Palestrina (715471) | more than 4 years ago | (#32133208)

At first glance this sounds somewhat like what happens when a company joins a standards committee, for those organizations that develop open standards, e.g., W3C, OASIS, etc. Patents controlled by members that are necessary to implement the standard are made available to implementers of the standards (whether a member or not). I actually think this is preferable to this DPL idea. On the on hand, open standards protect all implementers of the standard, not just the smaller number of those who actually write the standard. Second, by being more targeted to a specific technological areas, you actually see big companies, e.g., IBM, Google, Microsoft, etc., participate in standards development.

But what big company will contribute ALL of their patents to a pool, not even limited by technological area? Good luck with that. Maybe you'll get some small companies, but it will have the same impact as when Trinidad signed the Nuclear Nonproliferation Treaty.

In any case I think FOSS needs to always keep in mind that coming together to create a standard behind your technology is a great way to set it strengthen it from the IP perspective. Most companies with patent portfolios know how to get involved with open standards.

It wouldn't work... (1)

lazy_nihilist (1220868) | more than 4 years ago | (#32133250)

...against patent trolls.

Re:It wouldn't work... (1)

Sulphur (1548251) | more than 4 years ago | (#32133938)

Will this bridge the trolls?

Re:It wouldn't work... (0)

Anonymous Coward | more than 4 years ago | (#32136580)

It wouldn't work against patent trolls.

Right, but if it "works" then everyone who actually makes anything will ultimately have to sign onto it. At that point, who is going to defend the continued existence software patents in Congress? The patent trolls? Certainly not the companies like IBM and Microsoft who, once they sign on, can't assert their own patents against anyone anymore and have nothing to gain and everything to lose by the continued existence of the system.

So is there anything to suggest it'll be popular? (1)

Kjella (173770) | more than 4 years ago | (#32133278)

Seriously, you can make a license as "committed" as you want - that is the easy part. The problem is getting enough value to use that license, for example the GPL has long passed critical mass but very many other licenses have not. It might be a "good" license and yet ultimately irrelevant.

Re:So is there anything to suggest it'll be popula (3, Insightful)

dunng808 (448849) | more than 4 years ago | (#32133614)

I for one throw my support behind "no software patents." To support this plan would be hypocritical.

Re:So is there anything to suggest it'll be popula (1)

Yfrwlf (998822) | more than 4 years ago | (#32145290)

+1

I'd like to hear what companies and individuals are doing to stop software patents and hopefully severely cripple the USPTO as a whole, though I won't get my hopes up for the latter, but the entire thing could use obliteration or revamp.

I think what is more important though is that for individuals, it's irrelevant any way. No one can stop the sharing of information between individuals and that will apply even more strongly with patents as the Maker movement really gets going and home fabricators become more common. It's sad that businesses can't also join in all that due to the money they have painting targets on themselves because of those laws.

Why must so many laws do the exact opposite of helping the world advance as a whole? Oh yeah, so the few can profit..

Loophole? (1)

selven (1556643) | more than 4 years ago | (#32133352)

1) Evil Corp creates an independent organization, but run by the same people, called Evil Shell Corp
2) All Evil Corp employees working on IP are fired and rehired by Evil Shell Corp, with "work-for-hire" clauses now with Evil Shell Corp
3) Evil Shell Corp agrees to license all patents to Evil Corp for zero royalties
4) Evil Corp joins DPL, and gains all the benefits of being in the pool while Evil Shell Corp can pursue whatever patent trolling action it wants

Re:Loophole? (0)

Anonymous Coward | more than 4 years ago | (#32136690)

1) Evil Corp creates an independent organization, but run by the same people, called Evil Shell Corp
2) All Evil Corp employees working on IP are fired and rehired by Evil Shell Corp, with "work-for-hire" clauses now with Evil Shell Corp
3) Evil Shell Corp agrees to license all patents to Evil Corp for zero royalties
4) Evil Corp joins DPL, and gains all the benefits of being in the pool while Evil Shell Corp can pursue whatever patent trolling action it wants

All you're saying is that this doesn't work against patent trolls. The fact that some large company can fund an IP troll is hardly news (see SCO). But doing it on the scale you're talking about isn't going to work for a simple reason: It isn't cost effective to hire a huge team of engineers to just file for patents and not actually make any software. But if the same engineers who are filing for patents are also making something, whatever they're making becomes a target for suit and the patent company needs the defensive agreement. I suppose you could try having the engineers work half time for Evil Patent Corp and half time for Evil Software Corp, but I think a court would see through that as a constructive violation of the defensive agreement. Or you could just add a clause to the defensive agreement that explicitly prohibits those sorts of shenanigans.

Re:Loophole? (0)

Anonymous Coward | more than 4 years ago | (#32139402)

In other words : Obvious Evil Corp's patent troll is obvious.

More patent conference coverage (3, Informative)

Corbet (5379) | more than 4 years ago | (#32133640)

I, too, was at that conference; my LWN article about it [lwn.net] has been up for a week now.

mod the gpl (1)

vanyel (28049) | more than 4 years ago | (#32133734)

Given the ubiquity of GPL'd code these days, add a clause to the GPL:

"you're only allowed to use this software if you don't enforce patents against open source software"

Re:mod the gpl (1)

selven (1556643) | more than 4 years ago | (#32135040)

You do realize that one of the four freedoms is an unconditional right to use the software, right? Infringing freedoms to protect them kind of defeats the whole purpose.

Software patents are wrong... (4, Insightful)

3seas (184403) | more than 4 years ago | (#32133960)

.. so this effort is nothing more than to sabotage the honesty stand against software patents due to software not being of patent-able matter.

I'm absolutely certain Richard Stallman would agree.

Software is provably not patentable. [abstractionphysics.net]

Re:Software patents are wrong... (2, Interesting)

houbysoft (1367005) | more than 4 years ago | (#32134924)

Of course they are. However, there is a real need to protect open source software from patent lawsuits. Therefore, I believe this is completely appropriate. In court, nobody's going to care what you or Richard Stallman think. Software patents exist, so live with that and protect from it, until they are abolished.

Sadly, they still exist... (1, Interesting)

Anonymous Coward | more than 4 years ago | (#32137522)

Well, until we can get rid of them (hopefully soon), they exist.

Why shouldn't we protect ourselves from them?

Public Domain Does It All (4, Interesting)

Doc Ruby (173196) | more than 4 years ago | (#32136466)

Putting the invention in the public domain by publishing it with the statement "this invention is in the public domain" does everything these "defensive patents" claim to do. It does that without lawyers, without costs, without any doubt that the invention cannot be made a synthetic government-enforced monopoly ("patent").

Defensive patents are a scam. They are a way to reserve the right to stop someone else from making the invention. The public domain is what they'd do, if they weren't scamming.

Re:Public Domain Does It All (1)

sourcerror (1718066) | more than 4 years ago | (#32138186)

You have to be able prove before court that you published that. Would an upload to Internet Archive do it? I'm not completely sure.

Re:Public Domain Does It All (1)

gozu (541069) | more than 4 years ago | (#32257824)

I think the idea is to make it mandatory that any company that joins the DPL has to allow all its existing patents to be used by other DPL members.

Is patenting contradictory to Open Source? (2, Insightful)

PdbAqB (1534237) | more than 4 years ago | (#32136506)

There are plenty of people who espouse the view that patent protection is simply a tool for big business to flex its muscle and block access to innovation by small players and competitors. However, the underlying rationale of patent protection is to force an invention onto the public record. Sure, the patent owner gets a monopoly but it is limited for a specific period of time (very limited if you compare it to the monopoly a copyright owner gets) and after that it is free for all to use – down to the very last detail. In fact, you can’t get a patent unless you put in the detail. So the patent databases in reality form the largest standardised library in the worldpublicly accessible (no paywall / subscription fees) and reliable (at least in relation to granted or issued patents). Why should the open source community consider patenting? Getting a patent for an invention blocks another party from getting a patent for the same invention. So, if a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it (just as open source software is licensed). This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain. Check mate. Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence. A term of the licence may be that any modifications, enhancements or improvements are owned by the (open source) patent owner, thereby retaining all enhancements for public use. Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large. For more see http://bit.ly/dwJqE3 [bit.ly] & http://1p.com.au/ [1p.com.au]

Re:Is patenting contradictory to Open Source? (3, Informative)

grahammm (9083) | more than 4 years ago | (#32137048)

But why should a patent be necessary for that? Open Source software, by definition, puts the invention on public record - in considerably more detail and without the obfuscation present in patent claims. Patents are supposed to be for the benefit of 'practitioners in the art', but are in practice written by lawyers in a language foreign to the engineers and inventors. The publishing of the source should satisfy the requirements of 'prior art' so would block anyone from subsequently patenting it. So publishing as open source should provide all of the benefits of a patent without the expense and legal rigmarole of obtaining one.

Re:Is patenting contradictory to Open Source? (0)

Anonymous Coward | more than 4 years ago | (#32141994)

Software can be a black box as far as how it achieves its purpose. Listing the detail in a patent to provide a universal description for all to read can overcome the black box scenario. Additionally, a patent enables the inventor(s) to describe different embodiments. Open source software does not describe different embodiments.

I hope these considerations help.

Insipid (1)

Clueless Nick (883532) | more than 4 years ago | (#32137276)

TFA really lacks depth. There is no thorough critical evaluation of the needs for a patent license, examination of the patent co-operation between proprietary software vendors and the impact it has on the market, the virtues and pitfalls of GPL v3 etc.

There is no evaluation of why anyone would want to join a DPL alliance, whether they are a whale or a minnow. No corporation will give up its rights, assets and advantages without very compelling reasons. You could try it with universities, but they again subsist on funding through joint development projects and licensing to corporations.

Lastly, why do we keep on seeing so many articles linked from Network World? I have returned to slashdot after a long time, and I don't remember hearing much about them some years back. I must say that I am no fan of the quality of their stories I have seen so far.

It's not a defence; It's a new market for lawyers (0)

Anonymous Coward | more than 4 years ago | (#32137354)

Patents should be thrown out the window with the rest of the trash. This is just a case of lawyers finding yet more ways to earn a good living off the backs of everyone else.

Not GPL compatible (5, Interesting)

janwedekind (778872) | more than 4 years ago | (#32137614)

The GPL already contains a clause which requires the distributor of GPL software to grant a non-exclusive, royalty-free, world-wide patent license.
The article however suggests some kind of club where members use their patents defensively against non-members. That's not going to be effective unless you restrict membership. But I don't see how you can restrict membership without starting to discriminate users and developers of the software.

Re:Not GPL compatible (0)

Anonymous Coward | more than 4 years ago | (#32258824)

Membership is apparently restricted to those who promise to use their patents only "defensively". Many patent owners want to use them offensively, so it's not for them.

Needs this improvement. (2, Interesting)

zotz (3951) | more than 4 years ago | (#32137730)

Unless I missed something in the reading, it needs this improvement at least.

All patents in the pool are granted, royalty free for use by all Free Software, whether produced by members of the pool or not if the non-members have no patents. (Or perhaps just to copyleft Free Software? if needed to block gaming the system by patent holders who will not join.)

I need to think on this some more.

all the best,

drew

This can't work as it stands (2, Interesting)

deblau (68023) | more than 4 years ago | (#32139420)

Disclaimer: I'm a patent attorney. I'm not your patent attorney, and this is not legal advice, yadda yadda.

To get the protection of the DPL, a new member has to give up all of their own patents for free use by the group, right? So who stands to gain the most from joining? Businesses with no patents at all, or those with the most worthless patents (in case you need at least one patent as a membership requirement).

Say I want to be protected from being sued and I have a single, worthless patent (this one [google.com] for swinging on a swing comes to mind). Let's go through the list of requirements in TFA:

1. Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.

I'm not looking to sue anyone for having fun, but I do want access to lots of free and actually useful ideas, and to be protected from a lawsuit for ripping off those ideas.

2. Members of the DPL contribute all of their patents in their patent portfolio - they don't pick and choose (and this is what differentiates it from other defensive patent pools).

Awesome, the DPL can have my useless patent. Have fun enforcing it!

3. Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.

I always wanted to get some of $BIG_PLAYER's market share, but to do that I needed access to their patented technology. Now they are contractually obligated to let me use it, royalty-free, and they can't sue me for starting a competing business. Sweet!

4. Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.

Damn, I can't start charging people for swinging on swings. Well, at least those DPL guys at any rate. I'll be crying all the way to the bank.

5. Members that join after a company leaves would not have royalty-free access to a former member's patent portfolio.

I better hurry and join up before the big players figure out what's going on!

6. The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.

I don't want to sue anyone based on my patent. If you want to sue me, I'm now protected. DPL guys (and especially my competitors): U Can't Touch This.

The DPL will be a race to the bottom, with the companies that contribute the most worthless patents "winning", and the big boys laughing because the DPL is soaking up all the patents that don't matter. The obvious problem is that there's no gatekeeper of value. The big players will avoid this like the plague, since it provides them very little upside.

The only way any big players will go near this is if everyone puts some real skin in the game. For example, the DPL could add a mechanism for denying an applicant based on the market value of its patent portfolio, or require a minimum applicant market cap, or a large application fee that gets spread around, etc. In that case, prepare for the inevitable "old boy's club" mentality to set in, and the epic nerdrage (and Slashdot outcry) when a small applicant is denied because their ideas aren't "valuable" enough or they are too small and can't afford the application fee.

In the meantime, it stratifies the patent owners into the haves, the have-nots (i.e. the DPL), and the undecideds. If you were undecided on joining the DPL, would you want the stigma of being associated with, say, me and my patent for swinging on a swing? Or would you rather risk the status quo?

Keep trying guys. It's a good thought, but it needs a lot more work.

Re:This can't work as it stands (0)

Anonymous Coward | more than 4 years ago | (#32148080)

As you said: you're a pattent attorney.

Re:This can't work as it stands (1)

LongearedBat (1665481) | more than 4 years ago | (#32261442)

Businesses with no patents at all, or those with the most worthless patents (in case you need at least one patent as a membership requirement).

Some ideas clearly are a good match for each other. So, what if...
- an entry requirement into a DPL is a patent that the existing members in the DPL agree would be good to introduce, because it would strengthen the complete suite of patents?
- a scoring system is introduced to allow more "generous" members greater control over the direction of the DPL and a greater portion of the potential profits to the DPL itself (such as licence fees for using the patents in the DPL)?
- DPL's allowed other businesses to use the patents in return for licence fees (or for free, to protect from patent trolls)
- the original patent owner retains the right to add the patent to other DPL's

It seems that a DPL would become a business entity in it's own right.

A scoring system might be tricky to design/define, but I think doable. Different DPL's might also use different scoring systems.

First analysis of what the DPL might be able to do (1)

FlorianMueller (801981) | more than 4 years ago | (#32234648)

While the DPL is still work-in-progress, I've posted this preliminary analysis [blogspot.com] of its possibilities and limitations. It remains to be seen if it offers a compelling reason for anyone to join.

Patent pools (0)

Anonymous Coward | more than 4 years ago | (#32243470)

Like it or not, I think patent pools are a progressive measure that will only gain in popularity in the near future, particularly as the benefits of such arrangements become increasingly apparent. Of course, as with any system, patent pools have flaws that will have to be addressed, particularly at the beginning. But overall, I think that they're a great option, and present a potential net benefit for the area of patent law [generalpatent.com] .

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